Google’s ambitious plan to ‘publish’ all of the world’s books looks set to stir up the doctrines of ‘fair use’ and ‘fair dealing’

December 2005

COPYRIGHT
Internet, publishing

Google Inc (Google) has embarked on an ambitious program to collect as much as possible of the world’s book knowledge and make it full-text searchable via the Internet. This program, called the Google Print program, has two components. First, Google has worked with book publishers to make their titles searchable and easy to purchase online. Second, Google has taken to scanning, digitizing and making searchable parts or all of the collections of five major universities: Stanford University, Harvard University, Oxford University, the University of Michigan and The New York Public Library, including copyright-protected books from those collections. It is this second component that has drawn copyright holders’ ire and thus far spawned two lawsuits. Although Google has placed the onus on copyright holders to opt out of the program or face having their works scanned, for protected works it will only make available snippets of text surrounding the keywords searched. This, Google claims, is “fair use” under the USCopyright Act, and no different than indexing web pages to make them accessible via search engines. On September 20, the Author’s Guild and a number of individual authors filed a class action suit against Google. On October 19, the Association of American Publishers, which represents more than 300 publishing houses, announced that it too was suing Google. The authors and publishers claim that even though only portions of their works will be displayed by Google, the search engine is “free-riding” on their efforts and stands to earn millions of dollars in advertising and other revenues through the Google Print Library service. While it remains to be seen how the courts might resolve the dispute, the Kelly vArriba case may give some hint of which way the wind may blow. In that case, the US 9 th Circuit Court ruled that a search engine did not violate copyright law by displaying thumbnail images of photos from a photographer’s web site, because the search engine did not profit from the images and directed traffic to the photographer’s site. The key difference may be that, while the photographers had already published the photos online on their own web sites, the authors and publishers of the printed works Google plans to scan have not. Kelly v Arriba, 280 F 3d 934 (9th Cir 2002), see:http://kellyarriba.notlong.com. In a separate matter Agence France-Presse (AFP) has filed a copyright infringement suit against Google in US District Court after Google put AFP headlines, photos and article leads on the Google News web page, <http://news.google.com>. AFP is seeking US$17 million in damages and an injunction barring Google from further publishing its news stories and photos.